2018 IL App (2d) 160727
No. 2-16-0727
Opinion filed January 17, 2018
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Lake County.
)
Plaintiff-Appellee, )
)
v. ) No. 12-CF-3735
)
ARTHUR G. HOARE, ) Honorable
) Daniel B. Shanes,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE JORGENSEN delivered the judgment of the court, with opinion.
Justices McLaren and Spence concurred in the judgment and opinion.
OPINION
¶1 Defendant, Arthur G. Hoare, appeals the summary dismissal of his petition under the
Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2014)). He contends that
the petition stated the gist of a meritorious claim that his trial counsel was ineffective for failing
to advise him that, by pleading guilty to a drug-possession felony and accepting a sentence of
first-offender probation, he would necessarily be subject to deportation. We reverse and remand.
¶2 Defendant entered a negotiated guilty plea to unlawful possession of cocaine (720 ILCS
570/402(c) (West 2012)) and was sentenced to 24 months’ first-offender probation (720 ILCS
570/410(a) (West 2012)). Under “410 probation,” the court does not enter a judgment of
conviction (id.) and further proceedings are delayed until the defendant completes his probation
2018 IL App (2d) 160727
(720 ILCS 570/410(b) (West 2012)). If the defendant violates his probation, the trial court may
enter a judgment on the original finding of guilt and proceed accordingly. 720 ILCS 570/410(e)
(West 2012). If the defendant completes his probation successfully, he is discharged, the charges
are dismissed (720 ILCS 570/410(f) (West 2012)), and the disposition is not considered a
criminal conviction under Illinois law (720 ILCS 570/410(g) (West 2012)).
¶3 On June 10, 2013, the parties presented the plea agreement. The trial court noted that
defendant was also pleading guilty to driving with a revoked license and would pay costs for that
offense. The proceedings continued:
“THE COURT: For all of these, though, do you understand that for the drug case,
this 410 probation as we’re calling it, is a special kind of probation. A conviction is not
being entered for Illinois law purposes today. If you successfully complete the probation,
then there won’t be a conviction for that. There will be on the traffic offense.
But regardless, these dispositions could result in the federal government trying to
remove or deport you from the United States or prevent you from obtaining naturalized
United States citizenship.
Nobody here, not the lawyers, not me, nobody, can make you any promises or
representations as to what the federal government might do. Do you understand that?
THE DEFENDANT: Yes, sir.
THE COURT: Mr. Grimes [(defendant’s attorney)], have you and your client had
an opportunity to look into the immigration consequences?
MR. GRIMES: Yes, Judge. We believe that this is an appropriate disposition
taking that into account.
THE COURT: Okay. And you had a chance to speak with immigration?
-2
2018 IL App (2d) 160727
MR. GRIMES: An attorney.
THE COURT: You spoke to an immigration attorney?
MR. GRIMES: Yes.
THE COURT: Okay. Is that correct, sir?
THE DEFENDANT: Yes, sir.”
¶4 The court then heard the following factual basis for the plea. Officers would testify that
they stopped defendant for driving with a revoked license. At the police station, he removed his
hat; a white rock-like substance fell out. At a police crime laboratory, the substance tested
positive for cocaine and weighed 0.88 grams. Defendant stipulated to the factual basis, which
the court accepted. The court then admonished defendant of his appeal rights.
¶5 Defendant did not file a postjudgment motion or a direct appeal. On September 28, 2015,
the trial court found that defendant had admitted to violating his probation. It extended his
probation for 12 months and ordered him to serve 6 months’ periodic imprisonment.
¶6 On March 17, 2016, defendant, through counsel, filed his petition under the Act. The
petition alleged as follows. At all relevant times, defendant had been a citizen of Belize but not
of the United States. On February 5, 2015, the Immigration and Naturalization Service (INS)
notified him that he was charged with being subject to deportation under section 1227
(a)(2)(B)(i) of the Immigration and Nationality Act (Immigration Act) (8 U.S.C.
§ 1227(a)(2)(B)(i) (2012)), based on his guilty plea in this case. Section 1227(a)(2)(B)(i) states,
“Any alien who at any time after admission has been convicted of a violation of *** any law or
regulation of a State, the United States, or a foreign country relating to a controlled substance
***, other than a single offense involving possession for one’s own use of 30 grams or less of
marijuana, is deportable.” Id. Under section 1101(a)(48)(A) of the Immigration Act (8 U.S.C.
-3
2018 IL App (2d) 160727
§ 1101(a)(48)(A) (2012)), the plea was a “conviction” of violating a state or federal law relating
to a controlled substance (see 21 U.S.C. § 802 (2012) (defining controlled substance)).
¶7 The petition alleged further that, in the summer of 2015, federal officials ordered
defendant deported. On February 18, 2016, an immigration appeals court denied his appeal.
However, immigration counsel had advised defendant’s attorneys that defendant could reopen
the immigration case were his conviction vacated. Defendant was married to a United States
citizen and had children born here.
¶8 The petition claimed that defendant’s trial counsel had been ineffective for failing to
advise him that his guilty plea and 410 probation would result in his deportation even though
there had been no conviction for state-law purposes. The petition argued first that counsel’s
performance had been objectively deficient. Under Padilla v. Kentucky, 559 U.S. 356 (2010),
trial counsel must advise a defendant of the immigration consequences of a possible guilty plea.
The obligation is most stringent when the consequences are clear: the attorney may not merely
tell the client that there is a risk of adverse immigration results. Here, defendant’s guilty plea
was clearly a “conviction” under the Immigration Act, which, as pertinent here, defines that term
as “a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been
withheld, where *** the alien has entered a plea of guilty *** and *** the judge has ordered
some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.” 8 U.S.C.
§ 1101(a)(48)(A) (2012). Moreover, the Seventh Circuit had held that a guilty plea and 410
probation for any drug offense other than minor cannabis possession constitute a conviction
under the Immigration Act, subjecting the defendant to deportation with no opportunity for
discretionary relief. Gill v. Ashcroft, 335 F.3d 574, 579 (7th Cir. 2003).
-4
2018 IL App (2d) 160727
¶9 The petition alleged that defendant’s trial counsel had not met his obligation under
Padilla. It attached defendant’s affidavit stating, in pertinent part, as follows. After he was
arrested in this case, immigration officers took him into custody. One told him that, were he
convicted in this case, he would be deported. Defendant was released on bond. He did not speak
to an immigration lawyer before June 10, 2013. After hiring trial counsel, defendant told him
that he was not a United States citizen and recounted what the immigration officer had told him.
Counsel responded that he did not know anything about immigration law but that a guilty plea
and 410 probation would mean that defendant would not have been convicted and that
successfully completing his probation would result in the dismissal of the charges. Defendant
took this to mean that, on completing his probation, he would not be convicted and thus could
not be deported.
¶ 10 The petition also attached counsel’s affidavit stating as follows. At all pertinent times, he
had known that defendant was not a United States citizen. Before the entry of the guilty plea, he
had informed defendant that the plea and 410 probation, if successfully completed, would mean
that, under Illinois law, defendant would not have been convicted of the drug offense. Counsel
also advised defendant that the guilty plea and 410 probation could result in adverse
consequences for his immigration status. He did not affirmatively advise defendant that the plea
and 410 probation would result in his deportation.
¶ 11 Defendant then alleged that he had suffered prejudice from counsel’s substandard
representation. As pertinent here, defendant’s affidavit stated as follows. At the guilty-plea
hearing, he learned for the first time that counsel had spoken with an immigration lawyer. He
answered the court’s inquiry on this matter as he did only because of what counsel had said.
When counsel told the court that the plea agreement was the best result considering defendant’s
-5
2018 IL App (2d) 160727
immigration status, defendant took it to mean that counsel had confirmed that the INS would not
consider him to have a conviction. Only afterward did defendant speak to an immigration
attorney and learn that he was now subject to deportation with no chance for relief.
¶ 12 Defendant’s affidavit stated that he entered his plea in reliance on counsel’s
representation that his plea would not be a conviction and thus would not enable the federal
government to deport him. He would not have pleaded guilty had counsel met his obligation
under Padilla. He would have gone to trial rather than face certain deportation. He had been
married to a United States citizen for more than 9 years and had a 5-year-old daughter and a 13
year-old stepdaughter who were United States citizens. Both defendant and his wife had no
intention of living outside the United States. They were both employed in this country. He
would have done everything he could have to keep the family together in this country.
¶ 13 The trial court summarily dismissed the petition. The court’s written judgment stated as
follows. Before accepting defendant’s plea, the court had admonished him of the immigration
consequences and he had told the court that he understood. Under People v. Unzueta, 2017 IL
App (1st) 131306-B, and People v. Carranza-Lamas, 2015 IL App (2d) 140862, ¶¶ 45-47, the
admonishments cured any deficiency in counsel’s advice and belied defendant’s allegation that
he would not have pleaded guilty had he been properly advised. Further, defendant told the court
that an immigration attorney had been consulted, refuting any contrary allegation in the petition.
¶ 14 Turning to the prejudice prong, the court cited the general rule that, in the guilty-plea
context, a defendant must establish that, absent counsel’s deficient performance, he would have
insisted on going to trial and, to do so, he must either assert a claim of actual innocence or
articulate a plausible defense that could have been raised at trial. See id. ¶ 35. Here, defendant’s
petition did not assert a claim of actual innocence or articulate any plausible defense. Moreover,
-6
2018 IL App (2d) 160727
there could be no plausible defense; defendant had stipulated that, when he removed his hat at
the police station, nearly a gram of cocaine fell out.
¶ 15 The court concluded that defendant’s claim of ineffective assistance of counsel was
frivolous and patently without merit, and it dismissed the petition. Defendant appealed.
¶ 16 On appeal, defendant argues that his petition stated the gist of a meritorious claim that his
trial counsel rendered ineffective assistance. To establish ineffective assistance in a guilty-plea
case, a defendant must show that (1) counsel’s performance was objectively unreasonable and
(2) it is reasonably probable that, but for counsel’s unprofessional errors, he would have elected
to go to trial. See Strickland v. Washington, 466 U.S. 668, 688, 694 (1984); Hill v. Lockhart,
474 U.S. 52, 59 (1985). Defendant contends that his petition sufficiently alleged deficient
performance, because, under the plain language of the Immigration Act, his offense subjected
him to deportation with no opportunity for relief. He also contends that the petition sufficiently
alleged prejudice, because it stated facts from which to find that, regardless of the strength of the
State’s evidence, he would have chosen to go to trial had he known that pleading guilty left him
with no defense against deportation.
¶ 17 We review de novo the summary dismissal of a postconviction petition. People v.
Edwards, 197 Ill. 2d 239, 247 (2001). At this stage, the petition need allege only the gist of a
meritorious constitutional claim. Id. at 244. Its factual allegations must be taken as true unless
they are positively rebutted by the record and must be construed liberally in the defendant’s
favor. People v. Usher, 397 Ill. App. 3d 276, 279 (2009).
¶ 18 We decide first whether the petition sufficiently stated deficient performance. We take
the allegations as true and construe them liberally in defendant’s favor, thus resolving any
-7
2018 IL App (2d) 160727
conflicts or ambiguities in the attachments in his favor and drawing reasonable inferences in his
favor as well.
¶ 19 The petition alleged as follows as to counsel’s performance. Defendant, who counsel
knew was a Belize national and not a United States citizen, was charged with possession of
cocaine. Under the plain language of the Immigration Act, a “conviction” of that offense
subjected him to deportation with no recourse other than the forbearance or neglect of federal
authorities. And, under the plain language of the Immigration Act, as held by a federal appellate
court, a “conviction” included a guilty plea and 410 probation. Put differently, were defendant
convicted of the offense, either by a plea or after a trial, he would be legally defenseless against
deportation. Defendant told counsel that a federal official had informed him that a conviction
would mean deportation. Counsel discussed the matter with an immigration attorney, but
defendant was not present at the discussion. Between taking the case and appearing at the plea
hearing, counsel did not tell defendant that a guilty plea and 410 probation would be a conviction
under the Immigration Act or that they would result in his deportation. Counsel told defendant
that a guilty plea and 410 probation “could result in adverse consequences” for his immigration
status. Counsel also told defendant that a guilty plea with the successful completion of 410
probation would not be a conviction under Illinois law.
¶ 20 Based on the foregoing, defendant contends that, under Padilla, counsel’s performance
was objectively unreasonable. Defendant reasons that counsel’s general and inconclusive advice
that the prospective guilty plea “could” result in “adverse consequences” was insufficient to
convey the harsh reality that entering the plea would leave him defenseless against deportation.
Defendant relies on Padilla’s statement:
-8
2018 IL App (2d) 160727
“When the law is not succinct and straightforward ***, a criminal defense attorney need
do no more than advise a noncitizen client that pending criminal charges may carry a risk
of adverse immigration consequences. But when the deportation consequence is truly
clear ***, the duty to give correct advice is equally clear.” Padilla, 559 U.S. at 369.
Defendant contends that here the law was succinct and straightforward, making the deportation
consequence of a guilty plea clear: he could not avoid deportation. Therefore, he reasons,
counsel’s advice that defendant “could” be subject to “adverse immigration consequences” was
precisely what Padilla implies is deficient performance in a case such as this one. We agree.
¶ 21 Section 1227(a)(2)(B)(i) of the Immigration Act states plainly that a “conviction” of
possessing cocaine (and almost any other drug offense) makes a defendant “deportable.” 8
U.S.C. § 1227(a)(2)(B)(i) (2012). Defendant’s offense was indistinguishable from Padilla’s:
there was no doubt that it was within the statutory language. And, although section
1101(a)(48)(A) is not as simple or straightforward as section 1227(a)(2)(B)(i), it should have
been clear to counsel that 410 probation was a “form of *** restraint on [defendant’s] liberty.” 8
U.S.C. § 1101(a)(48)(A) (2012). Moreover, to the extent that this language required construction,
the Seventh Circuit had provided it in Gill, under circumstances that fit defendant’s situation,
leaving no plausible doubt that, by pleading guilty in return for 410 probation, defendant would
be deportable without recourse. Thus, as in Padilla, the deportation consequence was “truly
clear.” Padilla, 559 U.S. at 369.
¶ 22 Measured by this standard, defendant’s petition stated the gist of a meritorious allegation
that counsel performed deficiently by failing to inform him that a guilty plea to the charge of
cocaine possession, even with 410 probation, would make him deportable with no opportunity
for relief, save the neglect or indifference of federal authorities. The law, especially in view of
-9
2018 IL App (2d) 160727
Gill, made it plain that, by accepting the plea agreement, defendant was signing away any legal
right or basis to avoid deportation. Counsel was obligated to give him more than the tentative
and vague advice that his plea “could result” in “adverse immigration consequences.” Counsel
was obligated to tell defendant the concrete and easily ascertained truth: that the plea would strip
defendant of any defense to deportation. Counsel did not affirmatively mislead defendant, but,
under Padilla, that was not needed to establish professionally unreasonable performance. See
Padilla, 559 U.S. at 370-71.
¶ 23 Although foreign authorities do not bind this court, we may consult them for their
persuasive value. We find Ex Parte Torres, 483 S.W.3d 35 (Tex. Crim. App. 2016) directly
applicable and well reasoned. There, the defendant, a Mexican national and lawful permanent
resident of the United States, pleaded guilty to robbery and possession of cocaine, in exchange
for deferred-adjudication supervision on both charges. Id. at 38-39. Shortly afterward, the INS
initiated removal proceedings against him. He applied for postconviction relief, alleging that his
trial attorney had been ineffective for failing to advise him that his guilty plea to the cocaine
offense would result in mandatory deportation. Id. at 39.
¶ 24 At a hearing on the application, the attorney testified that, from the start, he had advised
the defendant to consult an immigration lawyer and had told him that pleading guilty to either of
the two felonies at issue “ ‘could result in his deportation.’ ” Id. at 40. The attorney did not
independently review the Immigration Act to determine whether the offenses were deportable.
Id. He also testified that, although he had advised the defendant that he “could be deported” as a
result of his plea, he did not “affirmatively tell [the defendant] that he would be deported
because, in his experience, a person can sometimes plead guilty to an aggravated felony and
- 10
2018 IL App (2d) 160727
never actually be deported.” Id. Crediting the attorney’s testimony, the trial court held that he
had not been ineffective. Id. at 41.
¶ 25 The Court of Criminal Appeals reversed the intermediate court of appeals, holding that
the defendant had not shown prejudice. The court held first, however, that he had satisfied
Strickland’s performance prong. The court stated that, under Padilla, the defendant’s attorney
had not sufficiently advised him of the “ ‘presumptively mandatory’ deportation consequence of
his plea.” Id. at 44. As in Padilla, this consequence had been “ ‘truly clear.’ ” Id. (quoting
Padilla, 559 U.S. at 369). Under section 1227(a)(2)(B)(i) of the Immigration Act, the drug
offense to which the defendant had pleaded guilty was indistinguishable from the offense in
Padilla; just by reading the statute, counsel could easily have determined that a conviction would
subject his client to deportation. Id. at 44-45. (Also, the robbery offense, as an “aggravated
felony” under section 1227(a)(2)(A)(iii) (8 U.S.C. § 1227(a)(2)(A)(iii) (2012)), subjected the
defendant to deportation, apparently without any opportunity for discretionary relief. Torres,
483 S.W.3d at 45.) Further, the Immigration Act’s definition of “conviction” (8 U.S.C.
§ 1101(a)(48)(A)) unambiguously implied that the defendant’s deferred-adjudication supervision
would not take his case out of section 1227(a)(2)(B)(i). Torres, 483 S.W.3d at 45.
¶ 26 The court held that the attorney had not met his obligation “to adequately warn [the
defendant] of the deportation consequences of his guilty plea that made him ‘subject to automatic
deportation.’ ” Id. (quoting Padilla, 559 U.S. at 360). The court explained:
“In short, it was not enough for counsel to advise [the defendant] that he might be
deported; rather, counsel was required to inform [the defendant] that, under these
circumstances, his deportation was a virtual legal certainty. And, although *** counsel
cannot always accurately predict *** whether a particular individual will be deported,
- 11
2018 IL App (2d) 160727
predicting the future is not what Padilla requires. Instead, Padilla requires that counsel
give a defendant accurate legal advice about the ‘truly clear’ consequences of a plea of
guilty to an offense that, as a matter of law, renders him ‘subject to automatic
deportation.’ [Citation.] We, therefore, agree *** that ‘counsel’s constitutional duty to
inform his client that his [client’s] removal is a virtual legal certainty does not wane
merely because counsel believes the probability of actual removal is uncertain.’
[Citation.] Given that [the defendant’s] guilty plea rendered him subject to automatic
deportation, we hold that, by advising [the defendant] that deportation was a mere
possibility, [the defendant’s] trial counsel failed to satisfy his duties under Padilla.” Id.
at 45-46.
We agree with this reasoning. When the consequences of a guilty plea are clear, certain, and
succinct, trial counsel cannot satisfy his obligation with advice that is vague and equivocal.
More specifically, if it is clear that deportation is legally automatic, as it was in Padilla and
Torres and is here, the attorney fails Strickland’s performance standard by advising his client
only that a guilty plea might affect his immigration status and that he should consult an
immigration attorney.
¶ 27 Moreover, we cannot agree with the trial court here that the admonishments that
defendant received made up for any deficiency in counsel’s representation. The court did not
advise defendant any more specifically or clearly than did counsel. Indeed, by conveying that
“nobody” could make defendant any “promises” about the immigration consequences of his plea,
the court’s admonishments were false, insofar as counsel was required to definitively articulate
these consequences. Thus, based on Padilla as binding, and Torres, which is factually
indistinguishable from this case, as persuasive, we hold that defendant’s petition, taken as true
- 12
2018 IL App (2d) 160727
and construed liberally, states the gist of a meritorious claim that counsel performed
unreasonably under the first prong of Strickland.
¶ 28 We are aware that there is authority from this court that might be taken to hold otherwise.
In Carranza-Lamas, the defendant, per an agreement, pleaded guilty to unlawful possession of
cocaine and received two years of 410 probation. Before accepting the plea, the trial court
admonished him that a conviction of his offense “ ‘may have the consequence of deportation,
denial of naturalization or exclusion of admission to the United States if you are not a citizen of
the United States.’ ” Carranza-Lamas, 2015 IL App (2d) 140862, ¶ 4. At the request of the
defendant’s attorney, the court clarified (or so it seemed) that, if the defendant complied with the
410 probation, there would be “ ‘no conviction.’ ” Id. ¶ 5.
¶ 29 Shortly before the defendant’s probation ended, he petitioned for relief under the Act. He
claimed that his attorney had been ineffective for misadvising him that a guilty plea and 410
probation would not be a conviction under the Immigration Act and thus would not subject him
to deportation. The defendant’s petition alleged the following facts. Since 2009, before he
committed the drug offense, the federal government had been seeking to deport him, on the
ground that he had entered the country illegally. Before pleading guilty, the defendant told his
trial attorney that he was not a citizen and did not wish to be deported. Eight days before his
probation ended, an immigration judge ordered him deported. An immigration attorney told the
defendant that, if his “conviction” in the drug case were vacated, the deportation case could be
reopened and he could obtain lawful permanent resident status, because his fiancée, who was the
mother of his children, was a United States citizen. Id. ¶ 6.
¶ 30 The petition alleged that the defendant’s trial attorney had been ineffective for
misadvising him that a guilty plea and 410 probation would not be a conviction for immigration
- 13
2018 IL App (2d) 160727
purposes. Id. According to the petition, the attorney’s advice was objectively unreasonable
under Padilla. Further, it had caused prejudice because, had the attorney advised the defendant
correctly, he would not have entered the guilty plea. On this point, the petition contended that
the defendant had a strong defense, which was supported by the facts in an affidavit that his
fiancée filed. Id. ¶¶ 7-8.
¶ 31 At an evidentiary hearing on the petition, the defendant’s immigration attorney testified
that, if the drug conviction stood, the defendant could not remain in the United States, even if he
married his fiancée. Id. ¶ 13. If the drug conviction were vacated and the defendant married his
fiancée, he would still have to leave the United States for at least 10 years because he had been
there illegally to begin with; but he might be able to return in fewer than 10 years if he could
obtain a discretionary “waiver” based on extreme hardship to his spouse. Id. Also, even an
illegal immigrant who is convicted of a drug charge might not actually be deported, as it would
not be “a certainty” that federal authorities would “come after” him. Id. ¶ 14.
¶ 32 At the end of the lengthy hearing, the trial court found that the defendant had not proved
prejudice under Strickland. The court explained that the deportation order had been based on the
defendant’s illegal presence in the country, which predated the drug conviction and the trial
attorney’s allegedly substandard performance. Also, the court reasoned, the defendant’s defense
to the drug charge was not sufficiently strong to support his claim that, with proper advice, he
would have gone to trial. Id. ¶ 29.
¶ 33 On appeal, the defendant argued in part that he had satisfied the first prong of the
Strickland test, as applied in Padilla. He maintained, as he had in his petition, that the
consequences of his guilty plea to a drug offense were as clear and succinct as they had been for
the defendant in Padilla. He noted that both cases turned on section 1227(a)(2)(B)(i) of the
- 14
2018 IL App (2d) 160727
Immigration Act, which stated in unmistakable terms that a conviction of any drug offense other
than first-time petty cannabis possession is deportable without legal recourse. Id. ¶ 37. He noted
further that, under section 1101(a)(48)(A) of the Immigration Act and Gill (which had been
decided years before the defendant was charged), his guilty plea and 410 probation were a
conviction that triggered automatic deportation under section 1227(a)(2)(B)(i). Id. ¶ 38.
¶ 34 This court held that, under “the unique facts” of the case, the trial court had properly
denied the petition, because the trial attorney’s performance had not been deficient. Id. ¶ 44.
We explained as follows. Unlike the defendant in Padilla, the defendant had already been
subject to deportation and involved in deportation proceedings; thus, even before being charged,
he had known that he could be deported. Id. Thus, his claim of deficient performance was
necessarily based on the allegation that the trial attorney had affirmatively misadvised him that a
guilty plea and 410 probation would not be a conviction for immigration purposes. Id. ¶ 45.
¶ 35 We rejected the defendant’s argument that, even given the foregoing, the trial attorney’s
relatively vague advice about the clear immigration consequences of the plea and 410 probation
was deficient performance under Padilla. We reasoned first (and primarily) that “researching
[section 1101(a)(48)(A) and Gill] leads to the conclusion that section 410 probation is considered
a conviction for immigration purposes, but it is not as clear as the statute at issue in Padilla.” Id.
¶ 47. We noted second (and secondarily) that, in the defendant’s particular circumstances, the
attorney had to confront a separate and much more complicated issue—whether the defendant’s
conviction would restrict the availability of discretionary postdeportation relief if he married a
United States citizen. Id. This issue involved the interpretation of at least one additional and
separate statute, which was “even less clear on its face” than section 1101(a)(48)(A) and thus
was not subject to Padilla’s high standard for a case in which the law is “ ‘succinct and
- 15
2018 IL App (2d) 160727
straightforward.’ ” Id. (quoting Padilla, 559 U.S. at 369); see 8 U.S.C. § 1252(a)(2)(C) (2006).
Therefore, we held that the attorney’s performance had not been deficient under the first prong of
Strickland, and we affirmed the judgment.
¶ 36 We acknowledge that this portion of Carranza-Lamas does appear to militate against
defendant here. The secondary reason that we noted does not apply; defendant’s petition said
nothing about counsel’s advice about postdeportation relief based on financial hardship to his
wife. But the primary reason that we distinguished Padilla does potentially apply. However, to
the extent that Carranza-Lamas does militate against defendant here, we decline to follow it.
¶ 37 In Carranza-Lamas, we distinguished Padilla on the following basis. In Padilla, and
cases to which the Court plainly intended its opinion to apply, the defendant’s attorney needed to
concern himself only with section 1227(a)(2)(B)(i), which made a cocaine conviction
automatically deportable—and this section was succinct and straightforward. But, in Carranza-
Lamas, the defendant’s attorney had to inform himself of (1) section 1227(a)(2)(B)(i), which
made a cocaine conviction deportable, and (2) section 1101(a)(48)(A), which made 410
probation a “conviction” under section 1227(a)(2)(B)(i)—and this section (even after Gill) was
“not as clear as the statute at issue in Padilla.” 1 Carranza-Lamas, 2015 IL App (2d) 140862,
¶ 47.
1
We acknowledge that the quoted passage from Carranza-Lamas does not
unambiguously state that section 1101(a)(48)(A) is “not as clear as the statute in Padilla.”
Carranza-Lamas, 2015 IL App (2d) 140862, ¶ 47. The passage states, “[R]esearching [section
1101(a)(48)(A) and Gill] leads to the conclusion that section 410 probation is considered a
conviction for immigration purposes, but it is not as clear as the statute at issue in Padilla.”
(Emphasis added.) Id. Ironically, the antecedent of the pronoun “it” is not as clear as we would
- 16
2018 IL App (2d) 160727
¶ 38 We must acknowledge that the foregoing reasoning is simply not persuasive. Although
the legal situation in Carranza-Lamas was not as simple as the one in Padilla, it was as clear. In
Padilla, as we noted in the preceding paragraph, the trial attorney had to take one step, which
was straightforward. In Carranza-Lamas, the trial attorney had to take two steps—the same one
as had the attorney in Padilla, followed by a second one that had not been present in Padilla.
The second step was straightforward too, and it led to an unambiguous conclusion.
¶ 39 The second step was, as noted, to determine whether section 1101(a)(48)(A) made a
guilty plea and section 410 probation a “conviction” under section 1227(a)(2)(B)(i). That was
not a difficult matter for the trial attorney. First, section 1101(a)(48)(A), though not as short and
concise as section 1227(a)(2)(B)(i), was still unambiguous. It made a guilty plea, combined with
a “punishment, penalty, or restraint on the alien’s liberty” (8 U.S.C. § 1101(a)(48)(A) (2012)), a
conviction for immigration purposes (8 U.S.C. § 1227(a)(2)(B)(i) (2012)). Surely the attorney
should have grasped that a term of probation, even one with the possibility of having the slate
cleared later if the defendant met its conditions, was a punishment, penalty, or, at the very least, a
restraint on the defendant’s liberty. Moreover, any doubt that the attorney entertained should
have been cleared up by the eight-year-old opinion in Gill, which held that a guilty plea and 410
probation constitute a conviction under section 1227(a)(2)(B)(i). Thus, we cannot endorse our
wish now. “It” could refer to section 1101(a)(48)(A), the 410 probation statute, the conclusion
that section 410 probation is a conviction under section 1227(a)(2)(B)(i), or simply the trial
attorney’s overall task in Carranza-Lamas of applying all of these statutes to determine what
advice he needed to give his client. For our purposes, however, there is no practical difference
regardless of how we parse the pertinent pronoun.
- 17
2018 IL App (2d) 160727
prior statement that section 1101(a)(48)(A) was not as clear as section 1227(a)(2)(B)(i).
Especially in light of Gill, the former statute was no less clear than the latter.
¶ 40 The situation confronting counsel here was no more difficult than that confronting the
trial attorney in Carranza-Lamas (and the one in Torres). In Carranza-Lamas, the attorney had
the plain language of section 1101(a)(48)(A) and the even plainer command of Gill to tell him
that a guilty plea and 410 probation constituted a conviction that triggered section
1227(a)(2)(B)(i). Here, counsel had the plain language of section 1101(a)(48)(A), the even
plainer command of Gill, and our acknowledgment in Carranza-Lamas that, under the statute
and Gill, a guilty plea and 410 probation constituted a conviction that triggered section
1227(a)(2)(B)(i).
¶ 41 We conclude that defendant’s petition stated the gist of the first half of a meritorious
claim of ineffective assistance of counsel—deficient performance. We turn to the second half—
prejudice. We hold that, under the Supreme Court’s recent decision in Lee v. United States, 582
U.S. ___, 137 S. Ct. 1958 (2017), the allegations of defendant’s petition were minimally
sufficient to satisfy Strickland’s prejudice prong.
¶ 42 In Lee, the defendant was South Korean but had been in the United States for
approximately 25 years as a lawful permanent resident and had built up two successful
businesses. The police searched his home and found ecstasy pills and weapons. The defendant
admitted that the pills were his. He was charged with possessing ecstasy with the intent to
deliver. His trial attorney advised him that, by pleading guilty, he would receive a lighter
sentence than if he went to trial. The attorney also said that he would not be deported as a result
of pleading guilty. Based on the advice, the defendant pleaded guilty and was sentenced to
- 18
2018 IL App (2d) 160727
prison. Id. at ___, 137 S. Ct. at 1962-63. However, it turned out that, under the Immigration
Act, his offense subjected him to mandatory deportation. Id. at ___, 137 S. Ct. at 1963.
¶ 43 The defendant sought postconviction relief, claiming that his trial attorney had been
ineffective. At the hearing on his action, both he and the attorney testified that “ ‘deportation
was the determinative issue in [the defendant’s] decision whether to accept the plea.’ ” The
attorney testified that he told the defendant that going to trial was a bad idea, because the defense
to the charge was weak; however, had he known that the defendant would be deported upon
pleading guilty, he would have advised him to go to trial. Id. The federal district court denied
the defendant relief, holding that, although the attorney had performed deficiently, prejudice had
not been proved. This was because the evidence of guilt had been overwhelming, so that going
to trial would almost certainly have resulted in deportation anyway, plus a longer prison term.
Id. at ___, 137 S. Ct. at 1964. The appellate court affirmed, explaining that under Hill, 474 U.S.
at 59, the defendant had been required to prove that, but for the attorney’s errors, he would not
have pleaded guilty and would have gone to trial instead. Lee, 582 U.S. at ___, 137 S. Ct. at
1964; see United States v. Lee, 825 F.3d 311, 313 (6th Cir. 2016). But with essentially no
defense at all to the charge, the certainty of deportation upon conviction, and the likelihood of a
longer prison term, a rational defendant would not have chosen a trial over the guilty plea. Lee,
582 U.S. at ___, 137 S. Ct. at 1964; see Lee, 825 F.3d at 314.
¶ 44 On appeal, the Supreme Court reversed the judgment and remanded the cause. The Court
noted that the Hill test is ultimately about the probability that a defendant, had he been properly
advised, would have gone to trial rather than plead guilty. Thus, “when the defendant’s decision
about going to trial turns on his prospects of success and those are affected by the attorney’s
error,” such as failing to move to suppress an improperly obtained confession, he must show that
- 19
2018 IL App (2d) 160727
he would have been better off going to trial. Lee, 582 U.S. at ___, 137 S. Ct. at 1965. However,
the Court explained, in the case before it, the defendant had known that he had little chance of
acquittal at trial, and his attorney’s error was unrelated to that; instead, the error affected the
defendant’s understanding of the consequences of his pleading guilty. Id.
¶ 45 Thus, the Court concluded, the fundamental issue in the case before it—whether the
defendant would have chosen a trial over a guilty plea had he been properly advised—could not
be resolved solely on the basis that the defendant had no realistic chance of acquittal or lesser
punishment had he gone to trial. After all, the Hill inquiry “focuses on a defendant’s
decisionmaking, which may not turn solely on the likelihood of conviction after trial.” Id. at
___, 137 S. Ct. at 1966. Theoretically, even had the defendant been fully aware that his chances
of acquittal were remote, he might still have elected that distant chance over the certainty of
deportation following a guilty plea. Id.
¶ 46 The Court cautioned that, to decide whether a defendant has proved prejudice, a court
“should not upset a plea solely because of post hoc assertions from a defendant about how he
would have pleaded but for his attorney’s deficiencies. Judges should instead look to
contemporaneous evidence to substantiate a defendant’s expressed preferences.” Id. at ___, 137
S. Ct. at 1967. In the “unusual circumstances” before it, the Court held that the defendant had
met his burden of proof. Id. Before entering the plea, the defendant had repeatedly asked his
attorney whether there was any risk of deportation. At the guilty-plea hearing, the defendant had
told the judge that the risk of deportation affected his decision, and he pleaded guilty only after
receiving a misleading assurance from the attorney. At the hearing on the postconviction action,
both the defendant and the attorney testified that the defendant would have gone to trial had he
known the deportation consequences of pleading guilty. The consequences of deportation would
- 20
2018 IL App (2d) 160727
have been even more severe than usual, as the defendant had lived in the United States for nearly
three decades without returning to South Korea or retaining any ties to the country, had
established successful businesses here, and was the only family member in the United States who
could care for his elderly parents, who were naturalized citizens. Id. at ___, 137 S. Ct. at 1967
68. Thus, it would not have been “irrational” for him to reject the absolute certainty of
deportation that would result from a guilty plea and risk the near certainty of deportation that
would result from going to trial, especially as the likelihood of a somewhat longer prison
sentence in the event of a conviction was far less of a consideration for him. Id. at ___, 137 S.
Ct. at 1968-69.
¶ 47 We consider Lee’s application to this case. We take into account that, in Lee, the
defendant sought to overcome a judgment that was based on an evidentiary hearing in a
completed postconviction proceeding. Here, defendant does not confront a judgment entered
after a hearing but need show only that, at the first stage of a postconviction proceeding, he has
established the gist of a meritorious claim. The “gist” standard is a low threshold. People v.
Hodges, 234 Ill. 2d 1, 9 (2009). The petition must provide factual detail sufficient to establish
that its allegations are capable of objective or independent corroboration. Id. at 10. Nonetheless,
the petition need not set forth a complete factual recitation, and it need present only a limited
amount of detail. Id.; People v. Edwards, 197 Ill. 2d 239, 244 (2001). 2
2
Although the supreme court based these principles on the recognition that most first-
stage postconviction petitions are drafted by pro se litigants with little legal knowledge or
training (see Hodges, 234 Ill. 2d at 9), these principles apply equally to first-stage petitions that
are drafted by attorneys (People v. Tate, 2012 IL 112214, ¶ 12). Thus, that defendant here had
the assistance of attorneys in presenting his petition does not affect the requirements for the
- 21
2018 IL App (2d) 160727
¶ 48 Given these standards, we hold that the petition sufficiently stated the gist of a
meritorious allegation of prejudice under Lee. Defendant did not articulate a plausible defense,
much less actual innocence. 3 However, according to the petition, when he pleaded guilty, he had
been married to a United States citizen for more than six years and had two small children who
also lived in the United States. Both he and his wife were employed in the United States and had
no desire to move elsewhere. Although defendant’s petition gave little other detail about his ties
to either the United States or his native Belize, it contained nothing to undermine the inference
that the former connections were much stronger than the latter. Thus, we cannot say that the
petition’s allegation that defendant would have gone to trial, had he known that deportation was
certain upon a plea of guilty, was frivolous or patently without merit. At this stage, no more was
required.
¶ 49 For the foregoing reasons, we reverse the judgment of the circuit court of Lake County
and we remand the cause for second-stage proceedings under the Act.
¶ 50 Reversed and remanded.
petition at this stage.
3
We note that the trial court, having ruled before the Supreme Court issued its opinion in
Lee, placed decisive weight on the absence of either a claim of actual innocence or a plausible
defense. Of course, as our review is de novo, the trial court’s reliance on pre-Lee law is of no
consequence.
- 22